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October 24, 1997

PIUS AILEMEN, et al., Defendants.

The opinion of the court was delivered by: WALKER

 On July 11, 1994, the government obtained a forty-two count superseding indictment against eighteen defendants, charging them for their involvement in a heroin smuggling organization allegedly headed by Pius Ailemen. Much of the evidence that was used to indict the defendants was acquired as a result of a wiretap authorized by a judge of this court on July 29, 1993.

 On September 16, 1994, Ailemen filed a motion to suppress the evidence obtained from the wiretap due to the government's failure to comply with the procedural requirements of 18 USC § 2518. This motion was referred to Magistrate Judge Wayne D. Brazil on November 29, 1994.

 After the parties exchanged several rounds of briefing, the magistrate conducted a seven-day evidentiary hearing, commencing on December 16, 1996. On May 22, 1997, the magistrate issued a one hundred twenty-nine page report in which he recommended that the court grant defendants' joint motion to suppress. After receiving an extension of time and relief from the page limits of the local rules, the government filed a one hundred eight page objection to the magistrate's report and recommendation ("Obj"). Defendants' filed a response on August 18, which was followed by a reply on August 22. The court conducted a hearing on the matter on August 27, 1997. Upon consideration of the papers submitted by the parties and the arguments presented at the hearing, the court hereby ADOPTS the magistrate's recommendation that the court GRANT defendants' joint motion to suppress evidence obtained by electronic surveillance.


 The referral of matter to a magistrate is governed by the United States Magistrates Act, 28 USC §§ 631-639. Subparagraph 636(b)(1)(A) of the Act permits a district court to designate a magistrate to "hear and determine" pretrial matters other than certain enumerated dispositive motions, such as a motion to suppress. Motions to suppress are governed by § 636(b)(1)(B), which provides that "a judge may [] designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court of [the] motion." The court must review de novo legal conclusions and challenged findings of fact.

 In making its de novo determination, the court considers the record which has been developed before the magistrate. See United States v Raddatz, 447 U.S. 667, 676, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980). The court may accept or reject the magistrate's credibility determinations, recognizing that the magistrate is in the better position to assess the credibility of the witnesses he sees and hears. See Raddatz, 447 U.S. at 681 n.7; United States v Mejia, 69 F.3d 309, 316 (9th Cir 1995). De novo review does not mean that the court must hold a new hearing to determine credibility disputes or grant further argument. See 447 U.S. 667 at 676, 100 S. Ct. 2406, 65 L. Ed. 2d 424; United States v Koenig, 912 F.2d 1190, 1192 (9th Cir 1990). Instead, the court must scrutinize the record and make its own decision what reliance to place on the magistrate's proposed findings and recommendations. Raddatz, 447 U.S. at 676.


 In recognition of the highly intrusive nature of electronic surveillance, Congress devised strict procedures for the authorization of wiretaps. See United States v Smith, 893 F.2d 1573, 1582 (9th Cir 1990) (citing United States v Bailey, 607 F.2d 237, 241 (9th Cir 1979)). At issue in this case is the necessity requirement of 18 USC § 2518(1)(c), which requires an application for interception of a wire, oral or electronic communication ("wiretap") to include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Before approving a wiretap, the issuing court must satisfy itself that traditional law enforcement methods are unlikely to succeed or are too dangerous to attempt. 18 USC § 2518(3)(c).

 Consideration of alternative law enforcement methods is central to the issuing court's necessity inquiry. See United States v Ippolito, 774 F.2d 1482, 1485 (9th Cir 1985). Although an investigative agency need not exhaust all possible investigative techniques before requesting a wiretap, United States v Homick, 964 F.2d 899, 903 (9th Cir 1992), it must demonstrate that "normal investigative techniques employing a normal amount of resources have failed to make the case within a reasonable period of time." United States v Spagnuolo, 549 F.2d 705, 710 (9th Cir 1977). Where ordinary investigative techniques have not been employed, the affiant must show that employment of such techniques "reasonably appear unlikely to succeed if tried or to be too dangerous." Id. Boilerplate assertions that the standard is met based on an agent's knowledge and experience will not suffice. Id. Instead, the affidavit must contain an "adequate factual history of the investigation and a description of the criminal enterprise sufficient to enable" the issuing court to determine on its own whether there is the requisite necessity for the use of a wiretap. See id. The court's inquiry should be guided by common-sense and practical considerations. United States v Echavarria-Olarte, 904 F.2d 1391, 1396 (9th Cir 1990).

 When law enforcement officers circumvent the procedural requirements of 18 USC 2518(1)(c), courts must suppress the evidence obtained from the illegal wiretap. Courts, for instance, will suppress evidence derived from a warrant issued on the basis of an affidavit that contains false statements regarding necessity. See, e.g., United States v Ippolito, 774 F.2d 1482 (9th Cir 1985). A reviewing court, however, may not throw out evidence of a crime simply because a law enforcement officer misrepresents some facts to the issuing court. See Franks v Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). Suppression is appropriate only if: (1) the affidavit contains misstatements or omissions made with the intent to deceive the issuing judge, or with a reckless disregard for the truth, that were material to the necessity determination; and (2) the affidavit, after the misstatements are deleted and the omissions are inserted, does not disclose the requisite necessity for a wiretap. See Ippolito, 774 F.2d at 1485-87.


 The government alleges that Pius Ailemen is a heroin smuggler who entices attractive women to courier drugs into the United States from international locations by promising them money and the opportunity to travel. The government first investigated Ailemen in 1987 and indicted him in 1989 on six counts, including conspiracy to distribute heroin. The jury acquitted Ailemen of all but a charge for making a false statement in a passport application. Ailemen was released from prison sometime around October 1991.

 In October 1992, DEA agents Robert Silano and William de Freitas commenced a second investigation of Ailemen after Aaron Mouton agreed to serve as a confidential informant so that the government would reduce the amount of time that his brother would have to serve in prison. The investigation employed the services of Carl Estelle and John Gutierrez, two officers assigned to the Alameda County Narcotics Task Force.

 On October 30, 1992, Mouton introduced Estelle, an experienced undercover investigator, to Ellis Quarshie, an intermediary for Ailemen. After Quarshie told Estelle that Ailemen was interested in exchanging heroin either for money or cocaine, Estelle assured Quarshie that he would get back to him. Estelle waited more than a month before he next contacted Quarshie.

 Estelle met with Quarshie at his home on December 3, 1992, at which time Quarshie gave Estelle a sample of Ailemen's heroin and told him that Ailemen was prepared to do business. The two met again the next day to discuss prices. Quarshie and Estelle had several telephone conversations between December 6 and December 10, throughout which Estelle pretended to be in Los Angeles.

 Quarshie and Estelle met in person again on December 10 and 11. Five agents surveilled the second meeting and, as a result, identified the Park Bellevue Tower in Oakland as Ailemen's residence. The agents further discovered that Nordahl Washington was the building's on-site manager. After determining that Washington was completely trustworthy, the agents learned some important information about Ailemen. Washington described Ailemen's apartment, identified two vehicles that Ailemen drove, provided cellular and residential telephone numbers for Ailemen and reported that Ailemen always used money orders to pay his $ 1,400 monthly rent.

 Estelle and Ailemen met for the first time in person on December 12, 1992, after Estelle purchased an ounce of heroin from Quarshie at Quarshie's house. Estelle and Ailemen discussed the possibility of a trade of cocaine for heroin and Ailemen mentioned that he needed to go to New York to get more heroin. Estelle told Quarshie that he would keep in touch.

 Estelle and Quarshie had several telephone conversations between December 18, 1992, and January 8, 1993, during which time Estelle pretended to be in Chicago, then Miami, looking for cocaine for Ailemen. Estelle told Quarshie on January 8 that he would be back in the Bay Area by January 11 and that he would contact him then. Despite the fact that Quarshie left messages with Mouton for Estelle almost daily for nearly four weeks, Estelle did not contact him until February 3, 1993.

 In the meantime, agent Gutierrez led efforts to conduct surveillance at Ailemen's home. On December 14, Gutierrez met with John Shahoian, the property manager of Ailemen's apartment, who told Gutierrez that he and Washington would assist the investigation in any way possible. Washington gave Gutierrez a key to the building and an access device for entering the garage. The investigators later installed a pen register, which records the numbers of incoming calls, on the two telephone lines Ailemen used from his apartment. On January 8, 1993, the DEA obtained the first of three subpoenas through which it acquired the billing statements for Ailemen's cellular phone. Later that month, the investigative team installed a hidden video camera in the hallway outside Ailemen's apartment and arranged for a mail cover from the United States Postal Service. The agents later replaced the original video camera with a tape delay model. Neither camera produced a clear picture so it was difficult for the agents to identify the people who appeared in the footage.

 On February 3, 1993, Estelle returned Quarshie's calls and met with him to arrange a 100 gram heroin purchase. Quarshie told Estelle that Ailemen was "so ready for you," that he had come down to Quarshie's house asking for Estelle, and that "he was really waiting for you." Obj at 26. Estelle met with Ailemen and Quarshie at Quarshie's house on February 9, 1992. Estelle told Ailemen that Colombians from Miami were interested in trading cocaine for heroin and might be willing to meet with Ailemen in the Bay Area. Ailemen declined the offer, but later told Estelle that Ailemen's heroin was located in New York and he suggested the possibility of meeting the Colombians there. Ailemen also told Estelle that he began to fear that Estelle was a government agent when Estelle disappeared for so long, but that Estelle dispelled these fears with his recent purchase. Ailemen also explained to Estelle at that meeting how he used white female couriers because they do not attract police suspicion and he discussed with Estelle the possibility of sending some of his couriers to Tijuana to purchase some cocaine.

 Estelle returned to Quarshie's house on February 11, 1993, and purchased 100 grams of heroin directly from Ailemen. Ailemen told Estelle that the heroin had arrived in New York at the same time as another plane that had been hijacked. The heroin was forwarded to San Francisco several hours later. Ailemen suggested to Estelle that Ailemen could get more heroin from Miami.

 On February 16, 1993, Estelle called Quarshie to tell him that Estelle wanted to employ one of Ailemen's couriers to transport to Chicago the 100 grams of heroin that Estelle had just purchased from Ailemen. Quarshie gave Ailemen's cellular telephone number to Estelle. Quarshie and Estelle arranged for a courier to transport Estelle's heroin to Chicago. Ailemen mentioned to Estelle that he would get some cocaine from some people in Los Angeles. In addition, Ailemen offered to sell Estelle 100 more grams of heroin so that he could pay off a debt; Estelle declined the offer.

 On February 19, 1993, Estelle met Ailemen, Quarshie and courier Kellee Cooper at Quarshie's house. Cooper and Estelle traveled by cab to the airport and sat next to each other on the airplane trip to Chicago. In Chicago, Cooper relayed the heroin to Sue Mitchell, an undercover DEA agent who was posing as the inexperienced courier hired by Estelle to transport the heroin from Chicago to Miami. Cooper gave Mitchell detailed instructions about how to smuggle drugs and how to act if stopped by law enforcement officials. The conversation and exchange were recorded on video and audio tape.

 At the close of the exchange, Estelle had a telephone conversation with Ailemen in which Ailemen again urged Estelle to buy more heroin from him and Estelle said he would call Quarshie in a few days. Estelle did not contact Quarshie or Ailemen for about a month.

 On February 24, 1993, the investigative team secured a warrant to install a pen register on Ailemen's cellular phone number. On February 26, 1993, surveillance agents saw a BMW that was registered to Lorelei Washington, the girlfriend of alleged co-conspirator Nathaniel Iheukwu, parked in front of Ailemen's apartment building. The agents followed Ailemen and "his associate," who was later identified as Nathaniel Iheukwu, to a check cashing business in Oakland despite the fact that Ailemen used counter-surveillance driving techniques.

 On April 15, 1993, Assistant United States Attorney Nandor Vadas, who had been involved in both Ailemen investigations, presented the case to the grand jury. Agent Silano testified to the grand jury, among other things, that "we have approximately seven couriers to date identified that we feel that are current from the last investigation that are possible hits."

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